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Commentary - Material field of application
    [p.1347] Article 1 -- Material field of application


    [p.1348] General remarks

    4446 As the heading indicates, Article 1 defines the material field of application of the Protocol, i.e., it determines the circumstances in which it applies. This provision constitutes the keystone of the instrument. It is the result of a delicate compromise, the product of lengthy negotiations, and the fate of the Protocol as a whole depended on it until it was finally adopted in the plenary meetings of the Conference. (1)

    4447 At first sight the article seems to be based on complicated concepts. In fact, the Protocol only applies to conflicts of a certain degree of intensity and does not have exactly the same field of application as common Article 3 , which applies in all situations of non-international armed conflict. Why there are these different steps in the applicable legal system can be more easily explained in the light of a brief historical survey.

    4448 Common Article 3 does not contain a definition of armed conflict. (2) In the absence of clarity of this concept, it gave rise to a great variety of interpretations and in practice its applicability was often denied. To improve the protection of the victims on non-international armed conflicts it proved necessary not only to develop the rules, but also to find more objective criteria to determine whether they are applicable and to reduce the measure of discretion left to each government.

    4449 Initially two possibilities had been envisaged: either to establish a procedure for determining objectively whether an armed conflict existed, or to clarify the concept of non-international armed conflict, i.e., to select a number of concrete material elements so that, when these elements are present, the authorities concerned could no longer deny the existence of a conflict.

    4450 It became apparent during the Conference of Government Experts that the first above-mentioned procedure would be too difficult to achieve. (3) Therefore this left the second solution, i.e., to formulate a definition, although everyone was fully aware of the risks incurred by such an undertaking. The applicability of common Article 3 was often not recognized because of the absence of a definition, but too rigid or too restrictive a definition would entail the risk of the Protocol not applying either. The work of the Conference of Government Experts showed [p.1349] how many divergent views and possible solutions existed. Six variants were formulated, based on thirteen proposals. The first was based on the view that a single Protocol should apply to all types of armed conflict without distinguishing between them; the other five, which only applied to non-international armed conflicts, ranged from the broadest conceivable definition, covering all situations, including those where the level of strife was very low, to the narrowest possible definition, covering only very intense conflicts with all the material characteristics of a war. (4) Taking the views that were expressed into account, the ICRC attempted in its draft to propose a formula defining the characteristics of non-international armed conflicts, while remaining sufficiently general and flexible to be able to apply to all such situations. (5)

    4451 The draft endeavoured to meet three concerns:

    1) to establish the upper and lower thresholds of non-international armed conflict;
    2) to provide the elements of a definition;
    3) to ensure that the achievements of common Article 3 would remain intact.

    4452 The upper threshold was defined by reference to armed conflicts within the meaning of common Article 2 of the Conventions. This formula was retained, but updated by referring instead to conflicts as covered by Article 1 of Protocol I ' (General principles and scope of application). '

    4453 The exclusion of situations of internal disturbances and tensions from the Protocol's field of application determined the lower threshold. This proposal, which corresponded with the views of the majority of the experts consulted previously, was also adopted and is now contained in paragraph 2 of the present text. The ICRC proposed a broad definition based on material criteria: the existence of a confrontation between armed forces or other organized armed groups under responsible command, i.e., with a minimum degree of organization. As its representative submitting the draft article in Committee explained, the intention was "to specify the characteristics of a non-international armed conflict by means of objective criteria so that the Protocol could be applied when those criteria were met and not be made subject to other considerations". (6) Although the basic idea underlying the proposal was approved, it turned out to be very difficult to achieve a consensus as to what criteria should be used in the definition. Apart from amendments, numerous proposals were put forward in the Working Group and Sub-Group. It was in fact necessary to create a Sub-Group of the Working Group and this had to meet six times before reaching an agreement. (7) The three criteria that were finally adopted on the side of the insurgents i.e. -- a responsible command, such control over part of the territory as to enable them to carry out sustained and concerted military operations, and the ability to implement the Protocol -- restrict the applicability of the Protocol to conflicts of a certain degree of intensity. This means that not all cases of non-international armed conflict are covered, as is the case in common Article 3 .

    [p.1350] 4454 Finally, the ICRC draft endeavoured to keep intact the achievements of common Article 3 by providing that the conditions of application of that article would not be modified. Keeping the conditions of application of common Article 3 as they are, and stipulating that the proposed definition will not apply to that article, meant that the Protocol was conceived as a self-contained instrument, additional to the four Conventions and applicable to all armed conflicts which comply with the definition and are not covered by common Article 2 . Keeping the Protocol separate from common Article 3 was intended to prevent undercutting the scope of Article 3 itself by laying down precise rules. In this way common Article 3 retains an independent existence.

    4455 As adopted, Article 1 of the Protocol takes into account most of these proposals, which are explicitly set out in paragraph 1.

    Paragraph 1

    4456 On the one hand, paragraph 1 establishes the link between the Protocol and common Article 3 ; on the other, it distinguishes international armed conflicts from non-international armed conflicts by means of a negative reference to Article 1 of Protocol I ' (General principles and scope of application). ' Finally, it lays down the material criteria determining the circumstances in which the Protocol is applicable.

    1. ' The link with common Article 3 '

    4457 Formally, the Protocol is additional to the four Conventions. In order to reinforce and increase the protection granted to victims of non-international armed conflict -- the ' raison d'être ' of Protocol II -- it develops and supplements the brief rules contained in common Article 3 "without modifying its existing conditions of application". This explicit reference constitutes one of the bases of the compromise which made the adoption of Article 1 possible. In fact, the Conference chose in favour of the solution which makes the scope of protection dependent on intensity of the conflict. Thus, in circumstances where the conditions of application of the Protocol are met, the Protocol and common Article 3 will apply simultaneously, as the Protocol's field of application is included in the broader one of common Article 3 . On the other hand, in a conflict where the level of strife if low, and which does not contain the characteristic features required by the Protocol, only common Article 3 will apply. (8) Infact, common Article 3 retains an autonomous existence, i.e., its applicability is neither limited nor affected by the material field of application of the Protocol. This formula, though legally rather complicated, has the advantage of furnishing a guarantee against any reduction of the level of protection long since provided by common Article 3 .

    [p.1351]

    2. ' The distinction between international and non-international conflicts '

    4458 Taking into account the link established with common Article 3 , the Protocol applies to all armed conflicts which are not covered by Article 1 of Protocol I ' (General principles and scope of application). ' By excluding situations covered by Protocol I, this definition creates the distinction between international and non-international armed conflicts. The entities confronting each other differ, depending on which category the conflict falls under; in a non-international armed conflict the legal status of the parties involved in the struggle is fundamentally unequal. Insurgents (usually part of the population), fight against the government in power acting in the exercise of the public authority vested in it. (9) This distinction sets the upper threshold for the applicability of the Protocol.

    3. ' The objective criteria '

    4459 This paragraph lays down a number of objective criteria for determining the field of application of the Protocol. Its application should not depend on the discretionary judgment of the parties. The Protocol applies automatically as soon as the material conditions as defined in the article are fulfilled. The aim of this system is that the protection of the victims of armed conflict should not depend on an arbitrary decision of the authorities concerned -- this is one of the cornerstones of international humanitarian law and already applied to Articles 2 and 3 common to the 1949 Conventions.

    3.1.' The parties confronting each other '

    4460 The Protocol applies on the one hand in a situation where the armed forces of the government confront dissident armed forces, i.e., where there is a rebellion by part of the government army or where the government's armed forces fight against insurgents who are organized in armed groups, which is more often the case. This criterion illustrates the collective character of the confrontation; it can hardly consist of isolated individuals without co-ordination.

    4461 In its draft the ICRC had provided that the Protocol would be applicable in the case of several factions confronting each other without involvement of the government's armed forces, for example, if the established government had disappeared or was too weak to intervene. (10) Such a situation, it appeared to the Conference, was merely a theoretical textbook example and the provision was dropped, even though the ICRC had already been confronted with this type of situation. Thus unfortunately the definition does not cover such cases and only common Article 3 will apply to them. Of course, the possibility will always exist [p.1352] of putting the Protocol into force by special agreement, as provided by common Article 3 . (11)

    4462 The term "armed forces" of the High Contracting Party should be understood in the broadest sense. In fact, this term was chosen in preference to others suggested such as, for example, "regular armed forces", in order to cover all the armed forces, including those not included in the definition of the army in the national legislation of some countries (national guard, customs, police forces or any other similar force). (12)

    3.2.' The responsible command '

    4463 The existence of a responsible command implies some degree of organization of the insurgent armed group or dissident armed forces, but this does not necessarily mean that there is a hierarchical system of military organization similar to that of regular armed forces. It means an organization capable, on the one hand, of planning and carrying out sustained and concerted military operations, and on the other, of imposing discipline in the name of a de facto authority.

    3.3.' Control over a part of the territory '

    4464 The article provides that the armed groups of the opposition must be able to exercise "such control over a part of [the High Contracting Party's] territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol".

    4465 These various criteria are closely related. Control over a part of the territory requires that the insurgent armed groups are organized. (13) What part of the territory should be controlled is not specified. In fact, several proposals were made with a view to specifying that this should be "a non-negligible part of the territory" (14) or a "substantial part of the territory", (15) but they were not adopted by the Conference.

    4466 The word "such" provides the key to the interpretation. The control must be sufficient to allow sustained and concerted military operations to be carried out. (16) and for the Protocol to be applied, i.e., for example, caring for the wounded and the sick, or detaining prisoners and treating them decently, as provided in Articles 4 ' (Fundamental guarantees) ' and 5 ' (Persons whose liberty has been restricted). '

    4467 In many conflicts there is considerable movement in the theatre of hostilities; it often happens that territorial control changes hands rapidly. Sometimes domination of a territory will be relative, for example, when urban centres remain [p.1353] in government hands while rural areas escape their authority. In practical terms, if the insurgent armed groups are organized in accordance with the requirements of the Protocol, the extent of territory they can claim to control will be that which escapes the control of the government armed forces. However, there must be some degree of stability in the control of even a modest area of land for them to be capable of effectively applying the rules of the Protocol.

    3.4.' The sustained and concerted character of military operations '

    4468 In fact, it is the "sustained and concerted military operations" which effectively determine control of a territory. What does this mean exactly?

    4469 "Sustained" (in French the reference is to "opérations continues") means that the operations are kept going or kept up continuously. (17) The emphasis is therefore on continuity an persistence. "Concerted" (in French: "concertées") means agreed upon, planned and contrived, done in agreement according to a plan. (18) Thus we are talking about military operations conceived and planned by organized armed groups. The criteria of duration and intensity (19) were not retained as such in the definition because they would have introduced a subjective element. The applicability of the rules of protection of the Protocol must not in fact depend on the subjective judgment of the parties. On the other hand, the criterion whether military operations are sustained and concerted, while implying the element of continuity and intensity, complies with an objective assessment of the situation. At the beginning of a conflict military operations rarely have such a character; thus it is likely that only common Article 3 will apply to the first stage of hostilities.

    3.5.' Ability to implement the Protocol '

    4470 This is the fundamental criterion which justifies the other elements of the definition: being under responsible command and in control of a part of the territory concerned, the insurgents must be in a position to implement the Protocol. The threshold for application therefore seems fairly high. Yet, apart from the fact that it reflects the desire of the Diplomatic Conference, it must be admitted that this threshold has a degree of realism. The conditions laid down in this paragraph 1, as analysed above, correspond with actual circumstances in which the parties may reasonably be expected to apply the rules developed in the Protocol, since they have the minimum infrastructure required therefor.

    [p.1354] Paragraph 2

    4471 This paragraph expressly excludes situations of internal disturbances and tensions from the Protocol's field of application, as these are not considered as armed conflicts. (20)

    4472 It should be stressed that the criteria laid down in paragraph 1, taken by themselves, are clearly sufficient to exclude internal disturbances and, a fortiori, internal tensions.

    4473 This paragraph was taken from the ICRC draft (21) and made sense in the context of the original draft article. Its purpose was to define the lower threshold of the concept of armed conflict, assuming that the field of application of common Article 3 and the Protocol would be identical. (22) The paragraph was not questioned and was retained and adopted without lengthy debates. (23)

    4474 No real definitions are given. The concept of internal disturbances and tensions may be illustrated by giving a list of examples of such situations without any attempt to be exhaustive: riots, such as demonstrations without a concerted plan from the outset; isolated and sporadic acts of violence, as opposed to military operations carried out by armed forces or armed groups; other acts of a similar nature, including, in particular, large scale arrests of people for their activities or opinions. (24)

    4475 As the ICRC has a legally recognized right of initiative to offer its services with a view to assisting and protecting the victims in such situations, (25) it has for a long [p.1355] time been attempting to define them in order to better guide its activities. Originally draw up for internal use, some definitions were submitted in particular to a group of government experts in 1970. (26) On the basis of their comments the ICRC gave the following description of internal disturbances during the first session of the Conference of Government Experts in 1971: (27)

    "This involves situations in which there is no non-international armed conflict as such, but there exists a confrontation within the country, which is characterized by a certain seriousness or duration and which involves acts of
    violence. These latter can assume various forms, all the way from the spontaneous generation of acts of revolt to the struggle between more or less organized groups and the authorities in power. In these situations, which do not necessarily degenerate into open struggle, the authorities in power call upon extensive police forces, or even armed forces, to restore internal order. The high number of victims has made necessary the application of a minimum of humanitarian rules."

    4476 As regards ' internal tensions, ' (28) these could be said to include in particular situations of serious tension (political, religious, racial, social, economic, etc.), but also the sequels of armed conflict or of internal disturbances. Such situations have one or more of the following characteristics, if not all at the same time:

    -- large scale arrests;
    -- a large number of "political" prisoners; (29)
    -- the probable existence of ill-treatment or inhumane conditions of detention;
    -- the suspension of fundamental judicial guarantees, either as part of the promulgation of a state of emergency or simply as a matter of fact;
    -- allegations of disappearances.

    4477 In short, as stated above, there are internal disturbances, without being an armed conflict, when the State uses armed force to maintain order; there are internal tensions, without being internal disturbances, when force is used as a preventive measure to maintain respect for law and order.

    4478 These definitions are not contained in a convention but form part of ICRC doctrine (supra and note 27). While designed for practical use, they may serve to shed some light on these terms, which appear in an international law instrument for the first time.

    [p.1356] 4479 Internal disturbances and tensions are not at present within the field of application of international humanitarian law; the ICRC has carried out activities in this field on an ad hoc basis. (30) However, this does not mean that there is no international legal protection applicable to such situations, as they are covered by universal and regional human rights instruments. (31) It is not within the scope of this commentary, however, to go into that subject.

    ' S. J. '


    * (1) [(1) p.1348] See O.R. VII, pp. 66-73, CDDH/SR.49, paras. 37-83. Article 1 was adopted as the result of a vote by roll-call (by 58 votes to 5, with 29 abstentions);

    (2) [(2) p.1348] See ' Commentary I ', pp. 49-51, and the introduction to this Part, supra, p. 1343;

    (3) [(3) p.1348] ' See CE 1971, Report ', p. 37;

    (4) [(4) p.1349] ' See CE 1972, Report ', Vol. I, p. 71. O.R. VIII, p. 203, CDDH/I/SR.22, para. 11;

    (5) [(5) p.1349] Draft Art. 1;

    (6) [(6) p.1349] See O.R. VIII. p. 203, CDDH/I/SR.22, para. 12;

    (7) [(7) p.1349] See O.R. X, pp. 93-94, CDDH/I/238/Rev.1;

    (8) [(8) p.1350] Mention should also be made of the possibility that armed factions confront each other without the armed forces of the government being involved; see infra, p. 1351;

    (9) [(9) p.1351] See O.R. VIII, pp. 203-204, CDDH/I/SR.22, paras. 13-14;

    (10) [(10) p.1351] ' Commentary Drafts, ' pp. 132-133;

    (11) [(11) p.1352] Common Art. 3, para. 3;

    (12) [(12) p.1352] O.R. X, p. 94, CDDH/I/238/Rev.1;

    (13) [(13) p.1352] In this context "control" is synonymous with domination. Cf. Shorter Oxford English Dictionary (1978), pp. 416 and 594;

    (14) [(14) p.1352] O.R. IV, p. 8, CDDH/I/79;

    (15) [(15) p.1352] Ibid., p. 7, CDDH/I/32;

    (16) [(16) p.1352] See infra;

    (17) [(17) p.1353] Shorter Oxford English Dictionary (1978), p. 2205;

    (18) [(18) p.1353] Ibid. p. 389;

    (19) [(19) p.1353] See O.R. IV, pp. 6-7, CDDH/I/26, CDDH/I/32, amendments which proposed formulae such as "the hostilities are o some intensity and continue for a reasonable period of time" and "over a prolonged period";

    (20) [(20) p.1354] The English phrase "as not being" is rendered in French as "qui ne sont pas considérés" (which are not considered as). This has no effect on the meaning;

    (21) [(21) p.1354] Draft Art. 1, para. 2;

    (22) [(22) p.1354] Art. 1, para. 1, of the draft read as follows: "The present Protocol shall apply to all armed conflicts not covered by Article 2 common to the Geneva Conventions of August 12, 1949, taking place between armed forces or other organized armed groups under responsible command"; see commentary para. 1, supra, p. 1350;

    (23) [(23) p.1354] In this respect the delegation of the Federal Republic of Germany stated: "This article constitutes a compromise solution which was difficult to reach. An essential element of this compromise is the fact that the existing conditions of application of Article 3 common to the Geneva Conventions are not modified. This is clearly expressed in Article 1, paragraph 1, of Protocol II. It also applies to paragraph 2 of the same article. Consequently, the negative definition of the term armed conflict in paragraph 2 applies only to Protocol II, not to Article 3 common to the Geneva Conventions.Thi is the understanding of the Federal Republic of Germany as to the interpretation of Article 1 of Protocol II. It does not, however, intend to express any view, be it only by implication, on the meaning of the term armed conflict as used in Article 3 common to the Geneva Conventions." See O.R. VII, pp. 79-80, CDDH/SR.49, Annex (FRG);

    (24) [(24) p.1354] See ' Commentary Drafts, ' p. 133;

    (25) [(25) p.1354] The Statutes of the International Red Cross, Art. VI, para. 5: "neutral institution whose humanitarian work is carried out particularly in time of war, civil war, or internal strife, it endeavours at all times to ensure the protection of and assistance to military and civilian victims of such conflicts and of their direct results [...]"; para 6: "It takes any humanitarian initiative which comes within its role as a specifically neutral and independent institution and intermediary and considers any question requiring examination by such an institution." It should be noted that not only the constituent bodies of the Red Cross Movement (ICRC, League, the National Red Cross and Red Crescent Societies), but also States Parties to the Geneva Conventions are members of the International Conference of the Red Cross, the body which adopted the Statutes and which can modify them. Cf. also supra, Editors' note;

    (26) [(26) p.1355] Cf. ' Preliminary Report on the Consultation of Experts Concerning Non-International Conflict and Guerrilla Warfare, ' ICRC, Geneva, 1970, p. 2;

    (27) [(27) p.1355] ' CE/5b ', p. 79, reproduced in ' The ICRC, the League and the Report on the Re-Appraisal of the Role of the Red Cross ', ICRC, Geneva, 1979, pp. 24-25 (offprint first published in the IRRC of July-August 1978, pp. 210-211);

    (28) [(28) p.1355] Ibid;

    (29) [(29) p.1355] It should be noted that there is no legal definition of so-called "political" prisoners. They may be referred to in very different ways depending on national legislation, for example, "persons detained for security reasons", "persons detained by order of the executive", etc;

    (30) [(30) p.1356] On this point reference may be made to J. Moreillon, ' Le Comité international de la Croix-Rouge et la protection des détenus politiques, ' Lausanne, 1973, p. 303;

    (31) [(31) p.1357] See commentary Preamble, supra, p. 1337;